Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 21003 OF 2014 AND W.P.(C) No.20335 OF 2014 In the matter of applications under Articles 226 and 227 of the Constitution of India. --------------- AFR In W.P.(C) No.21003 of 2014 Smt. Rajanigandha Mohanta ..… Petitioner -Versus - State of Odisha and others ….. Opp. Parties For Petitioner : M/s. Bimbisar Dash & C. Mohanta, Advocates For Opp. Parties : Mr. S. Nayak, Addl. Standing Counsel In W.P.(C) No.20335 of 2014 Smt. Sumitra Naik ..… Petitioner -Versus - State of Odisha and others ….. Opp. Parties For Petitioner : M/s. Bimbisar Dash & C. Mohanta, Advocates For Opp. Parties : Mr. S. Nayak, Addl. Standing Counsel 2 P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing: 24.08.2023 :: Date of Judgment : 29.08.2023 DR. B.R. SARANGI, J. The above noted two writ petitions arise out of same cause of action, as the petitioners therein seek to quash the second list of candidates qualified in the written test held on 25.09.2011 under Annexure-7, proceedings of the 2nd meeting of the selection board held in the office of the D.F.O., Karanjia Division on 21.12.2011 under Annexure-8, the notice dated 24.12.2012 with regard to final select list under Annexure-9, as well as the order dated 04.08.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. NO.770(C) of 2012 and batch under Annexure-12. They further seek direction to the opposite parties to consider them as eligible and appoint them as against the vacant posts meant for female candidates.
Decision
Therefore, both the writ petitions were heard together and 3 are disposed of by this common judgment, which will govern in both the cases. 2. The factual matrix, which led to filing of these writ petitions, shortly put, is as follows:- 2.1 Opposite party no.2-Principal Chief Conservator of Forests, Odisha issued a notification under Annexure-1 inviting applications from eligible candidates to fill up several posts of Forest Guard under direct recruitment quota in accordance with the Orissa Sub-Ordinate Forest Service (Method of Recruitment and Conditions of Service of Forest Guard) Rules, 1998 (hereinafter to be referred as “Rules, 1998” in short). Pursuant to said notification, the petitioners submitted their candidature for Karanjia Forest Division. After verification of documents, being found eligible, they were directed to appear in the written test on 25.09.2011 with Roll No.147K(FG) of petitioner- Rajanigandha Mohanta in W.P.(C) No.21003 of 2014 and Roll No.358(FG) of petitioner-Sumitra Naik in W.P.(C) No.20335 of 2014. 4 2.2 Both the petitioners appeared in the written test on 25.09.2011 conducted by opposite party no.4- Divisional Forest Officer, Karanjia Forest Division. The result of the said written test was declared on 02.10.2011, in which the names of the petitioners found place at serial nos.29 and 64 in the list. In the said written test, as many as 84 candidates were declared as qualified and, as such, the result of the written test was published in the notice dated 25.09.2011. After being selected in the written test, the petitioners were directed by opposite party no.4 to appear before him for verification of original certificates, measurement of physical standard and for cycling test on 12th, 13th and 14th of October, 2011. After verification of original certificates, measurement of physical standard and cycling test, the petitioners, along with 49 candidates, were declared eligible to appear in the walking test to be held on 28.10.2011. Accordingly, the petitioners were asked to appear in the walking test on 28.10.2011 and they appeared in the said test on same date. Thereafter, a notice was published by opposite party no.4 vide 5 Annexure-6(A) dated 29.10.2011 indicating the names of 47 candidates qualified in the walking test, wherein the name of petitioner-Rajanigandha Mohanta in W.P.(C) No.21003 of 2014 was found place at serial no.21 and the name petitioner-Sumitra Naik in W.P.(C) No.20335 of 2014 was found place at serial no.40. Accordingly, opposite party no.4 intimated both the petitioners to attend the viva voice test on 09.12.2011 2.3 On 17.11.2011, a second list of 29 candidates was released vide Annexure-7, wherein the names of the petitioners did not find place. Thereafter, pursuant to proceedings of the meeting of the selection board held on 21.12.2011, opposite party no.4 published a notice on 21.12.2011 under Annexure-8 showing the petitioners disqualified in the written test. From out of two list, a list containing 21 names was released, which was declared to be the select list of candidates for recruitment to the post of Forest Guard. The candidates placed in the 2nd list were subjected to viva-voce test along with the previously qualified 83 candidates including the petitioners on 6 09.12.2011. Thereafter, a final select list was published vide Annexure-9. 2.4 Challenging the illegal action of the opposite parties, petitioner-Rajanigandha Mohanta in W.P.(C) No.21003 of 2014 and petitioner-Sumitra Naik in W.P.(C) No.20335 of 2014 filed O.A. No.773(C) of 2012 and O.A. No.771(C) of 2012 respectively before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack. Similarly, challenging the action of the opposite parties one Bindu Rekha Mohanta filed O.A. No.770(C) of 2012 and Reena Patra filed O.A. No.772(C) of 2012. The Tribunal heard the aforesaid cases together and passed a common order on 17.07.2014 dismissing the said Original Applications. 2.5. Challenging the order dated 17.07.2014 passed by the Tribunal, Rajanigandha Mohanta filed W.P.(C) No.21003 of 2014 and Sumitra Naik filed W.P.(C) No.20335 of 2014. Bindu Rekha Mohanta filed W.P.(C) No.19803 of 2014, which was dismissed as withdrawn, vide order dated 18.04.2019 granting liberty to the 7 petitioner to file an application within 30 days from the date of passing of the order for revival of the said writ petition in case of any difficulty. Learned counsel appearing in the said case is the counsel for the present writ petitioners. 2.6. In course of hearing, this Court made a query that when this Court, vide order dated 18.04.2019, granted liberty for revival of W.P.(C) No.19803 of 2014 within a period of 30 days in case of any difficulty, did the petitioner file any application. In reply, learned counsel appearing for the petitioners stated that no such application was filed. Therefore, the order dated 18.04.2019 reached its finality, so far as Bindu Rekha Mohanta is concerned. But, learned counsel appearing for the petitioners wanted to pursue the present writ petitions filed by Rajanigandha Mohanta and Sumitra Naik and accordingly they were taken up for hearing. 3. Mr. Bimbisar Dash, learned counsel appearing for the petitioners contended that the petitioners were selected pursuant to written test held on 25.09.2011 and, 8 thereafter, they were directed to appear before opposite party no.4 for verification of original certificates, measurement of physical standard and cycling test on 12.10.2011, 13.10.2011 and 14.10.2011 respectively and also they were declared successful. Therefore, they could not have been declared disqualified in the written test without affording opportunity of hearing. It is further contended that if the opposite parties found any mistake in the result of the written test, then they could have withdrawn the select list and conducted a re-test cancelling the 1st result. Without doing so, the opposite parties invited the petitioners to attend the viva voce test and, therefore, they are estopped to declare that the petitioners could not qualify in the written test. Since the petitioners were qualified in written test, certificate verification, measurement of physical standard and cycling test, their legitimate expectation would be to get employment, but the select list was modified on the ground that there were mistakes in the declaration of selected candidates in the written test and published the 9 second list, which cannot have any justification. It is further contended that in the proceedings of the meeting held on 21.12.2011, it was reflected that revised mark- sheet was communicated to opposite party no.4 by the RCCF-cum-FD-STR, Baripada on 04.11.2011 which superseded the former mark-sheet, and that altogether names of 113 candidates, i.e., 84 (as per the first mark- sheet) and 29 new (as per revised mark-sheet) were considered for the exercise of certificate verification. The selection board conducted viva voce test of 58 candidates, including the petitioners, who were alleged to have been failed in the written test as per the revised mark sheet. Therefore, it is contended that the entire procedure adopted by the opposite parties is de-hors the rules. The Tribunal, while disposing of the Original Applications, vide common order dated 17.07.2014, failed to appreciate the wrong committed by the opposite parties. Thereby, the Tribunal has committed gross error apparent on the face of the record so as to cause interference of this Court at this stage. 10 4. Mr. S. Nayak, learned Addl. Standing Counsel appearing for the State-opposite parties, while admitting the fact that direct recruitment to the posts of Forest Guard in different Divisions/Offices in Orissa Forest Department was made in accordance with the Rules, 1998, contended that the process of recruitment includes (a) written test (Math & Odia), (b) physical standard test, (c) cycling test, (d) walking test and (e) viva voce test. First four tests are qualifying tests, i.e. if a candidate fails to qualify in any of those tests, he/she is not eligible to appear in the subsequent tests. When the written test was conducted, evaluation process was started and after evaluation, the answer-sheets were de-coded. Marks secured by the candidates were then tabulated and published in shape of score-sheet. In course of coding/de- coding of answer sheets by the Data Entry Operators, certain inadvertent errors were occurred. Marks actually secured by the candidates could not fit correctly against their roll numbers. As a result of thereof, some of the candidates got less marks although failed and some other 11 candidates got less marks even though they were qualified. On the other hand, 29 candidates, who had actually passed in the written test examination, their marks were not accurately tabulated against their names in the initial score-sheet. Their marks were either shown as less mark or shown as disqualified. Because of this error in tabulation, qualified candidates were shown as disqualified in the written examination and debarred from attending subsequent tests for no fault of them. In order to set right the things, these 29 candidates were called to attend subsequent tests in second batch. Thereby, when mistake was pointed out, the same was rectified and as a consequence thereof, no illegality or irregularity has been committed by the authority in publishing the second list showing the qualified candidates in accordance with law. Therefore, it is contended that the Tribunal is well justified in passing the order impugned, which does not require interference of this Court at this stage. 5. This Court heard Mr. Bimbisar Dash, learned counsel appearing for the petitioners; Mr. S. Nayak, 12 learned Addl. Standing Counsel appearing for the State- opposite parties in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 6. The factual matrix, as delineated above, as well as the contentions raised by learned counsel appearing for the respective parties, as recorded hereinbefore, if summed up, would emerge that an advertisement was issued inviting applications from the eligible candidates for recruitment to the posts of Forest Guard in different Divisions/Offices in Orissa Forest Department for filling up of vacancies under direct recruitment quota in accordance with the Rules, 1998. As per the said Rules, 1998, the process of recruitment includes (a) written test (Math & Odia), (b) physical standard test, (c) cycling test, (d) walking test and (e) viva voce test. First four tests are qualifying tests, i.e., if a candidate fails to qualify in any of those tests, he/she is not eligible to appear in the 13 subsequent tests. For example, if a candidate is failed in the written examination, he/she is not eligible to appear in any of the tests thereafter. That means, passing in each examination is mandatory. In the year 2011, direct recruitment of Foresters and Forest Guards in Karanjia Division was undertaken by opposite party no.4. Pursuant to such advertisement, the petitioners submitted their applications in respect of posts of Forest Guard and were allowed to appear in the written test. Before the written test, activities like setting of question papers, selection of examination centres, selection of Centre Superintendent, Invigilators were discharged by the RCCF, Baripada Circle in accordance with the provisions laid down under Rule- 14(d)(iv) of the Rules, 1998. Prior to the process of evaluation, front page of answer sheets carrying candidate’s bio-data are replaced with code-tags and this exercise had been adopted by the RCCF, Baripda as a fair practice with a view not to entertain any personal biasness of evaluators. After evaluation, the answer-sheets were de- 14 coded. Marks secured by the candidates were then tabulated and published in shape of score-sheet. 7. In course of coding/de-coding of answer sheets by the Data Entry Operators, certain inadvertent errors were occurred. Marks actually secured by the candidates could not fit correctly against their roll numbers. As a result of thereof, some candidates got less marks although failed and some candidates got less marks even though they were qualified. On the other hand, 29 candidates, who had actually passed in the written test examination, their marks were not accurately tabulated against their names in the initial score-sheet. Their marks were either shown as less mark or shown as disqualified. Because of this error in tabulation, qualified candidates were shown as disqualified in the written examination and debarred from attending subsequent tests for no fault of them. In order to set right the things, these 29 candidates were called to attend subsequent tests in second batch. This inadvertent error was detected by the RCCF, Baripada. No sooner the error was detected, the RCCF, Baripada 15 rectified the said error by preparing a revised score-sheet. Therefore, two different score-sheets (of all candidates) had been prepared by the RCCF, Baripada and they were issued by the RCCF, Baripada on two different occasions. The initial one was issued by the RCCF, vide memo no.1797 dated 01.10.2011 communicated to the Divisional Forest Officer, Karangia, whereas the latter one was issued by the RCCF, Baripada, vide letter no.2334 dated 04.11.2011 communicated to the Divisional Forest Officer, Karanjia. 8. The written test includes two subjects, i.e. Odia and Mathematics, each carrying 25 marks as maximum. As per Rules, 1998, petitioner-Rajanigandha Mohanta in W.P.(C) No.21003 of 2014 was required to secure at least 50% marks in written test and petitioner-Sumitra Naik in W.P.(C) No.20335 of 2014 was required to secure at least 40% of marks in order to qualify for the subsequent tests, i.e., physical standard test, cycling test, walking test and viva voce test. While shortlisting the names of successful candidates from the score-sheet issued, vide memo 16 no.1797 dated 01.10.2011 of the RCCF, Baripada, it was found that in the written test, petitioner-Rajanigandha Mohanta in W.P.(C) No.21003 of 2014 secured 22.5 marks out of 50 marks and petitioner-Sumitra Naik in W.P.(C) No.20335 of 2014 secured 17 marks out of 50 marks, but they were wrongly declared as “passed” in the written test, instead of declaring them as failed, and were allowed to appear in subsequent tests, i.e., physical standard test, cycling test, walking test inadvertently. Since the petitioners qualified in the physical standard test, cycling test and walking test, they were allowed to appear in the viva voce test also. Since there was gross error apparent on the face of the records with regard to recording of marks in the process of coding and de-coding of answer sheets and the erroneous publication of result gave advantage to the petitioners to appear in the subsequent tests, even though they were not qualified in the initial test of written test. When the inadvertent error was detected, the RCCF, Baripada rectified the said error by preparing a revised score-sheet. The detailed marks secured by each 17 of the petitioners, who filed O.As. before the Tribunal, are given below: Case No. Name of the applicant Oriya Math O.A 779/12 Bindurekha Mohanta O.A 771/12 Sumitra Naik O.A. 772/12 Reena Patra 02 13 11 O.A. 773/12 Rajanigandha Mohanta 16.5 15 01 00 03 Grace Mark Total 03 03 03 03 20 17 14 22.52 9. It is well settled in law that if a mistake is committed by the authority, the same can be corrected when it is brought to the notice. 10. “MISTAKE” is not mere forgetfulness; it is a slip “made, not by design but, by mischance”. Otherwise also the “mistake” includes an error in conduct consisting of an unintended failure to perform correctly and effectively a task intended to be duly performed. 11. In West Bengal Electricity Board v. Patel